Palomo v. State Bar

Decision Date06 September 1984
Citation205 Cal.Rptr. 834,685 P.2d 1185,36 Cal.3d 785
CourtCalifornia Supreme Court
Parties, 685 P.2d 1185 Raul PALOMO, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent. L.A. 31816.

State Bar of California, Ellen A. Pansky, Los Angeles, for respondent.

BY THE COURT: *

The Review Department of the State Bar Court recommends that Raul Palomo be suspended from the practice of law for one year, with the suspension stayed on condition of probation.

Petitioner was admitted to practice law in 1974. He has one instance of prior discipline; in 1980, he stipulated to public reproval for wilful violation of rules 2-111 (delivery of client files) and 5-101 (unethical business dealings with client) of the Rules of Professional Conduct.

Here, the hearing panel sustained allegations that petitioner "wilfully" violated his oath and duties as an attorney (Bus. & Prof.Code, § 6067) 1 and committed acts of dishonesty and moral turpitude when he (1) endorsed, without consent, his client's name on a check payable to the client, (2) deposited the proceeds in his payroll account rather than his trust account, (3) failed promptly to notify the client he had received the check and to pay over the funds due, and (4) misappropriated and commingled the deposited funds. (See rule 8-101, Rules Prof.Conduct.) The review department adopted the hearing panel's findings with minor modifications. It recommends that petitioner be suspended for one year, with suspension stayed on condition that he pass the Professional Responsibility Examination, maintain detailed trust account records, and file periodic reports. We uphold the findings of fact and adopt the disciplinary recommendation.

FACTS

Certain of the facts are not in dispute. In December 1980, Jose Antonio Torres retained Robert Roman, a member of petitioner's law firm, to represent Torres in connection with the New York probate of his father's estate. Torres paid a retainer fee of $75 and signed a retainer agreement. Roman left petitioner's employ around March 1981. On April 20, 1981, petitioner's firm 2 received a partial distribution check for $3,000 from the estate's representatives. The check was payable to Torres.

Without Torres' knowledge, and without express oral or written authority, petitioner simulated Torres' endorsement on the check. It was deposited in the firm's payroll account. In August 1981, Torres learned that distributions had been made to other estate beneficiaries; on August 6 he consulted Roman about the status of his share. On August 21, after several inquiries from Roman, petitioner sent Torres a trust account check for $3,150, representing the earlier distribution plus "interest."

The disciplinary proceeding was commenced by an order to show cause served June 4, 1982. Hearing was noticed for September 20, 1982. Petitioner retained Ronald Slates to represent him. Sometime before August 1, 1982, Slates was replaced, or at least supplemented, by a second attorney, Michael Rochford.

Meanwhile, on July 28, 1982, the State Bar served interrogatories and a request for admissions, including admissions that petitioner had acted "wilfully." A request for production of documents, including payroll account bank statements, was included. The responses were due September 2, 1982. On or about August 1, 1982, the co-examiners also arranged with Rochford for petitioner's deposition to be taken on August 25.

Around August 20, petitioner's counsel withdrew for nonpayment of fees; the State Bar co-examiners were so advised. On August 24, petitioner, acting in propria persona, signed a stipulation extending discovery time until September 5 and postponing his deposition until September 10. Petitioner did not comply with the discovery requests on the extended date therefor.

On September 9, petitioner moved for a 90-day continuance of the hearing date, for relief from default on the discovery request, and for an indefinite extension of both discovery and deposition. The principal ground asserted was the delay caused by withdrawal of counsel. Petitioner asserted that he was not indigent and declined to represent himself, but he could not presently raise sufficient funds to pay retained counsel "up front."

Petitioner did not appear for his scheduled deposition on September 10. His motions, opposed by the State Bar, were denied by Assistant Presiding Referee Fried on September 17.

Petitioner appeared in propria persona at the hearing on September 20. He renewed his motion for continuance, which was denied by the hearing panel, and stated he would not proceed without counsel. However, following an emotional exchange with the presiding officer, he agreed to submit to examination. After some testimony was elicited by the State Bar examiner, petitioner stated he was unable to testify or proceed further without representation; he thereupon left the hearing room, and the hearing continued in his absence.

DENIAL OF CONTINUANCE

Petitioner first contends he was denied due process when the hearing was not continued to permit him to retain counsel. We disagree.

Continuances of disciplinary hearings are disfavored, and a request for continuance must be supported by a factual showing of good cause. (Rule F.3, State Bar Court Rules.) The order to show cause in this case so advised. A strong rule against unnecessary delay is essential to ensure that the public will be protected by the prompt discipline of erring practitioners.

Moreover, contrary to petitioner's contention, State Bar proceedings cannot be compared to criminal actions, and criminal procedural safeguards do not apply. Generally, an accused attorney has the obligation to obtain representation if he wants it, to appear at the hearing, and to present evidence. The hearing may proceed despite his voluntary absence, and his failure to participate is not grounds for a rehearing to present additional evidence. (Yokozeki v. State Bar (1974) 11 Cal.3d 436, 447, 113 Cal.Rptr. 602, 521 P.2d 858, and cases cited.)

In Yokozeki, supra, the accused attorney, served in Tokyo, had repeatedly advised the State Bar he could not attend the hearing because of foreign legal commitments. Nonetheless, this court found that a 14-month hiatus between the order to show cause and the final hearing date was ample time to assure any due process right to obtain counsel and prepare. (Id., at pp. 445-447, 113 Cal.Rptr. 602, 521 P.2d 858.)

In the instant case, hearing commenced only three and one-half months after first notice, and the hearing date was never continued. However, petitioner here was personally available throughout and was represented by counsel until one month before the hearing. In light of counsel's withdrawal, discovery and deposition dates were extended informally at petitioner's request. Moreover, the order to show cause cited but a single incident of misconduct, and the facts alleged were not complex. There is no serious suggestion that relevant documents and witnesses were unknown or unavailable, or that the defense otherwise presented problems of unusual subtlety.

On the other hand, petitioner's showing of "good cause" for a continuance was seriously deficient. Counsel's withdrawal occurred almost a month before the scheduled hearing. Yet petitioner's motion, made within days of the hearing date, recited no efforts to locate new counsel who might undertake his defense. Petitioner asserted that additional time was necessary to obtain funds to pay retained counsel, but he listed no steps he had taken to liquidate available assets or borrow the money necessary.

At the same time, petitioner disclaimed eligibility for appointed counsel, and he declined, even in the oral renewal of his motion, to request that counsel be appointed for him. Even in criminal matters, there is no suggestion that the qualified right to counsel of choice permits substantial delay while a defendant without immediate resources gathers the sums necessary to induce retained counsel to proceed. (Compare, e.g., Crooker v. California (1958) 357 U.S. 433, 439, 78 S.Ct. 1287, 1291, 2 L.Ed.2d 1448; Ingram v. Justice Court (1968) 69 Cal.2d 832, 840, 73 Cal.Rptr. 410, 447 P.2d 650; see also Maxwell v. Superior Court (1982) 30 Cal.3d 606, 613-614, 180 Cal.Rptr. 177, 639 P.2d 248; People v. Crovedi (1966) 65 Cal.2d 199, 207, 53 Cal.Rptr. 284, 417 P.2d 868.)

Were we ruling on the request in the first instance, petitioner's difficulties with his counsel, plus the relative shortness of time between the order to show cause and the hearing date, might induce us to grant a continuance. Under the circumstances, however, we cannot say that denial of the request was an abuse of discretion or denied petitioner due process.

HEARSAY EVIDENCE OF BANK BALANCE

Petitioner complains that hearsay evidence of the periodic balances in his payroll account was introduced "over [his] specific objections." At the hearing, Co-examiner Robbins testified that she had looked over petitioner's bank statements in Attorney Slates' office but had not been permitted to copy them; subsequent efforts to obtain the documents by formal discovery did not succeed. She was allowed to state from notes made during the office examination that the balance in the payroll account had fallen below $3,000 on several occasions between April 20 and August 21, 1981.

Petitioner had voluntarily left the hearing well before Ms. Robbins took the stand; contrary to his assertion, the record discloses no timely objection to her testimony. Hence, the issue must be deemed waived. (Yokozeki, supra, 11 Cal.3d 436, 447-448, and fn. 8, 113 Cal.Rptr. 602, 521 P.2d 858.) 3

ENDORSEMENT OF CLIENT'S CHECK

The hearing panel found, among other things, that petitioner had endorsed his client's signature to the estate distribution check without Torres' knowledge or consent. An attorney who does so engages in serious misconduct. (E.g., Silver v....

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